UNEMPLOYABILITY OR TDIU
In some cases, a veteran with less than a 100% scheduler rating is so affected by service-connected conditions that they cannot work at gainful employment. The law allows for another type of claim in such a case. VA benefits are available to compensate a veteran at the 100% level if they are not able to work because of service-connected conditions even without a 100% scheduler rating. This benefit is called "total disability based on individual unemployability" ("TDIU"), or sometimes "individual unemployability" ("IU").
The critical issue in a TDIU claim is the inability of the veteran to engage in "substantially gainful employment" because of their service-connected conditions. "Substantially gainful employment" means to hold a job that pays at least an amount equal to the annual poverty level set by the federal government. To qualify for TDIU benefits, a claimant must meet the following requirements:
If the claimant has only one service-connected condition, that condition must be scheduler rated at least 60% or more;
If the claimant has two or more service-connected conditions, at least one of those conditions must be rated at 40% or more, and the veteran's combined VA disability rating must be 70% or more; and
In either case, the veteran must be unemployable because of their service-connected conditions.
To establish "unemployability" or "inability to substantially maintain gainful employment," the veteran must provide evidence of unemployment due to service-connected conditions, employment history records (hours worked, gross annual income, and dates of employment), and medical evidence that the veteran's service-connected condition renders them totally disabled and unemployable, generally a doctor's opinion letter.
Having a paying job does not automatically disqualify a claimant from a TDIU award. If the wages are considered "marginal" (low paying) or "sheltered" (protected from usual requirements), employment is the exception to the TDIU qualification requirements. Examples of employment that are allowed under TIDU:
A job that pays substantially less than the prevailing poverty level,
A job that is protected from conditions that someone else in that position would be expected to satisfy, or
A job working for a friend or relative may not be "substantially gainful employment."
Although it is always better to submit a specific claim for TDIU, the VA has a duty to look for potential TDIU claims based on the evidence in the claimant's VA claims file, known as a "C-file." The VA is required to review the claims for TIDU, even if not explicitly requested by the veteran because entitlement to TDIU is part of every claim for VA disability compensation. Upon reviewing the claim, the VA determines if TDIU is an appropriate award for the claim. The veteran can submit evidence of unemployability after an initial decision denying TDIU; if a claim for scheduler benefits is still being processed.
As with most VA benefits, TDIU is not a permanent benefit. The VA can require a claimant to undergo periodic medical examinations to confirm that the claimant remains unable to work due to a service-connected condition. And, as with all VA examinations, a failure to report for a scheduled examination can result in suspension or termination of a TDIU benefit. In addition, since a TDIU award is also based on "unemployability," the VA can periodically request employment information from a claimant receiving TDIU benefits. The VA will also cross-check employment earnings with the IRS. The TDIU rating could be terminated, and the claimant could be liable to repay VA for the TDIU benefits paid since that employment began, if:
The VA becomes aware that a claimant is working at a job that is not marginal or sheltered,
A claimant must also be careful in performing volunteer work because the nature and time spent at unpaid work show that a claimant could be employed and is no longer unemployable.
If a Veteran is determined to be employable, the TDIU award can and will probably be revoked. When a TDIU rating is revoked, a claimant's benefits go back to the amount of compensation payable under the scheduler rating. The VA can make the veteran repay the TDIU award.
The VA Disability Advocates Main Office is Located in Las Vegas, NV. We Represent Veterans throughout the United States. 702-209-5722